Keynote Address

Justice Ruth Bader Ginsburg:A Judge's Perspective

PETER J. RUBIN*

It is an extraordinary honor for me to deliver these remarks at thisSymposium on the Jurisprudence of Justice Ruth Bader Ginsburg, a trueAmerican hero. No living judge has had a greater impact on American law.While this is a conference about Justice Ginsburg's jurisprudence, andparticularly her jurisprudence since joining the Supreme Court in 1993, thatjurisprudence is inevitably shaped by Justice Ginsburg's experiences beforeshe joined the Court. She is a pioneer. When she entered Harvard LawSchool in 1956, she was one of only nine women in her class, and she facedthe formidable obstacles to equal participation in professional and public lifethat women faced at that not-so-distant time in the past.

After she graduated from Columbia Law School at the top of her class,no law firm in New York offered her a job. When in 1960 the Dean of theHarvard Law School recommended her for a clerkship with Supreme CourtJustice Felix Frankfurter, the Justice replied that he was not ready to hire awoman.' She joined the faculty at Rutgers and then moved to Columbiawhere she was the first woman to become a tenured law professor.2 As theDirector of the Women's Rights Project at the ACLU, she won Reed v.Reed,3 in which she represented the appellant, and five of the six sexdiscrimination cases she argued before the Supreme Court, including the 8-1decision in Frontiero v. Richardson,4 altering the course of Americanconstitutional law, and opening the path to the recognition of the equality ofwomen under that fundamental charter of equality. In 1980, President JimmyCarter appointed her to the United States Court of Appeals for the District of

* Associate Justice, Massachusetts Appeals Court; Professor of Law, Georgetown

University. This paper is based on the Keynote Address given by the author at theSymposium entitled "The Jurisprudence of Justice Ruth Bader Ginsburg: A Discussion ofFifteen Years on the U.S. Supreme Court," held at The Ohio State University MoritzCollege of Law on April 10, 2009.

1 Neil Lewis, Rejected as a Clerk, Chosen as a Justice, N.Y. TIMES, June 15, 1993,at Al.

2 Id.

3 404 U.S. 71 (1971).4 411 U.S. 677 (1973). Justice Ginsburg's other victories came in Edwards v. Healy,

421 U.S. 772 (1975); Weinberger v. Wiesenfeld, 420 U.S. 636 (1975); Califano v.Goldfarb, 430 U.S. 199 (1977); and Duren v. Missouri, 439 U.S. 357 (1979).

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Columbia Circuit, and in 1993, President William Jefferson Clinton elevatedher to the United States Supreme Court, where she serves with suchdistinction today. She is only the second woman to sit on that Court, and isthe only woman among the nine current members of our High Court.

You have heard already today about Justice Ginsburg's impact on avariety of substantive areas of the law: civil procedure, equal rights, otherareas of constitutional law. But I want to talk about Justice Ginsburg as ajudge, about what her jurisprudence tells us about her approach to judging,and about what her work teaches us about the proper role of courts andjudges in our constitutional system.

This is a topic that is of particular interest to me as a judge. But, asJustice Ginsburg doubtless recognizes, it is of broader importance to societyat large. The role of the courts in our system of government, and the waythey ought to function, is a question of ongoing debate and deep significancethat touches all Americans, and, indeed, in light of the unique position of theUnited States, one that touches people everywhere in the world.

From the description of her substantive work, you will by now haverealized that courage and candor are the hallmarks of her jurisprudence. It isa matter of debate whether these are characteristics that can be taught orlearned, but because she possesses them, Justice Ginsburg has earned adistinctive place in the judicial pantheon.

In my remarks today, however, I want to focus upon three lessonsimplicit in Justice Ginsburg's work on the Supreme Court that can indeed belearned, but that have at best been hinted at by the sessions examining herjurisprudence in various substantive areas of law. The first has to do with theappropriate scope of the judicial power. The second with the nature of thejudicial function. And the third has to do with collegiality on a multimembercourt.

You have heard today about some of Justice Ginsburg's justly famousopinions, from United States v. Virginia5 to ML.B.6 to Ledbetter.7 But thelens through which I want to begin my examination of her approach tojudging is a case that has received little attention. It is Kontrick v. Ryan,8 acase from 2004 about whether a time limit contained in a Federal Rule ofBankruptcy Procedure is jurisdictional.

Now I know what you're thinking: I had thought this event might beentertaining, but I never imagined that I would get to hear a talk aboutsomething as exciting as the time limits in the Bankruptcy Rules. But if

5 518 U.S. 515 (1996).6 M.L.B. v. S.L.J., 519 U.S. 102 (1996).

7 Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007) (Ginsburg, J.,dissenting).

8 540 U.S. 443 (2004).

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you'll bear with me, you'll find that the way in which Justice Ginsburgparsed those Rules is deeply revealing.

The Bankruptcy Code contains a rule that limits the time within whichone may file a complaint objecting to a debtor's discharge. Such a complaintmust be filed within sixty days of the first date set for a meeting of creditors.9

That same rule provides that an extension of time may be granted if a motionseeking to extend the time is filed before the time for filing has expired.'And another rule makes clear that an enlargement of time for filing thecomplaint is not permitted for any reason except as stated in the rule itself."

There are other rules like the latter one with which you may be morefamiliar. This Bankruptcy Rule is modeled on Federal Rule of CivilProcedure 6(b), which prohibits extending the time for certain post-trialmotions-for example motions under Rule 5 0(b) for judgment as a matter oflaw or Rule 59(b) for a new trial, which must be brought within ten days ofthe entry ofjudgment.'

2

In Kontrick, the debtor brought a Chapter 7 bankruptcy petition. 13 Acreditor filed a timely complaint objecting to the discharge, but subsequently,and outside the sixty-day time limit, filed an amended complaint that added anew claim. 14 That untimely claim was litigated to judgment. The debtornever raised its untimeliness before the bankruptcy court. But after judgment,for the first time, the debtor argued that that court was powerless toadjudicate the claim because it was filed untimely.'5 The court's action, heclaimed, was in violation of a jurisdictional time limit. And eventually hebrought that argument to the United States Supreme Court, which grantedcertiorari on the question of whether the deadline set in the rule was, in thewords of one of the Court's prior cases, "mandatory and jurisdictional" andthus could not be waived.'

6

Justice Ginsburg wrote the opinion in Kontrick for a unanimous court.And she concluded that the debtor was not entitled to raise the untimelinessof the creditor's new claim after the debtor had "litigated and lost the case onthe merits."' 7 Although the claim had not been timely when it was filed, the

9 FED. R. BANKR. P. 4004(a).10 FED. R. BANKR. P. 4004(b).

11 FED. R. BANKR. P. 9006(b)(3).12 See FED. R. CIV. P. 6(b)(2), 50(b), 59(b).13 Kontrick, 540 U.S. at 448.

14 Id. at 448-49.15 Id. at 451.16 Id. at 452 n.7 (quoting language in the Question Presented originally used by the

Court in United States v. Robinson, 361 U.S. 220, 228-29 (1960)).17 Id. at 458-60.

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deadline imposed by the rule was not, Justice Ginsburg concluded,"jurisdictional." Questions of a federal court's jurisdiction, of course, maynot be waived. They may be raised by the parties at any time, and, indeed,the court has an obligation in every case to determine sua sponte whether ithas jurisdiction.'8

In Kontrick, there was no dispute that the deadline contained in the ruledetermined when a creditor's complaint could be filed. Nor was there anyquestion that it was a rigid deadline. The courts were without power toextend it.

Justice Ginsburg noted, however, that courts, including the SupremeCourt, had been, in her words, "less than meticulous" in their use of the word"jurisdictional" to describe mandatory filing deadlines.' 9 Congress conferssubject-matter jurisdiction upon the courts, and in this case jurisdiction wasconferred upon the bankruptcy court by a statute that contained no timelimitation.20 The Bankruptcy Rules, promulgated by the Supreme Court likethe rules of practice and procedure in the district courts and courts of appeals,while imposing what Justice Ginsburg called an "inflexible" rule,21 neithercreated nor extinguished federal jurisdiction. The deadline thus was not"jurisdictional." As a consequence, even if such an inflexible claimprocessing rule was unalterable on a party's application, if the opposing partyfailed to raise the violation of the rule in a timely fashion, that objectioncould be waived. Put another way, the untimeliness of a creditor's complaintin a case like the one before the Court, could not be raised for the first timeon appeal.

Kontrick is a rather remarkable decision in many dimensions. Ithighlights Justice Ginsburg's precision of thinking, which is a hallmark ofher jurisprudence and an example for other judges. It highlights, too, herinsistence upon the precise use of language. As she wrote in that case,"[c]larity would be facilitated if courts and litigants used the label'jurisdictional' not for claim-processing rules, but only for prescriptionsdelineating the classes of cases (subject-matter jurisdiction) and the persons(personal jurisdiction) falling within a court's adjudicatory authority. 22

But most important, Kontrick shows the nature of Justice Ginsburg'sapproach to adjudication. The adjudicatory power, she wrote while serving asa Circuit Judge on the United States Court of Appeals, is an "awesome

18 See Mansfield, Coldwater & Lake Mich. Ry. Co. v. Swan, 111 U.S. 379, 382(1884).

19 1d. at 454.20 Kontrick, 540 U.S. at 444.2 1 1d. at 444,456.2 2 ld. at 455.

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authority., 23 Of course there is an enormous literature about the importanceof limitations on that authority, for the proper functioning of democracy,

24

for each of the co-equal branches of the federal government to robustly playits appropriate role,25 and for the proper balance of power within our federalsystem.26 And the fundamental limits upon judicial authority arejurisdictional limits: only when there is subject-matter and personaljurisdiction over the parties, Justice Ginsburg explained in her 1999 decisionin Ruhrgas AG v. Marathon Oil, may a court's decision bind those parties.27

And a court must ensure that it has jurisdiction before it exercises whatJustice Ginsburg has elsewhere characterized as its "substantive 'law-declaring power.'

28

But Kontrick concludes that the limits placed on the filing of thecomplaint in that case were not jurisdictional. Her opinion for the Court inthat case demonstrates that for Justice Ginsburg, questions of jurisdiction arenot mechanisms to be used for policy reasons to avoid adjudication. Kontrickexpresses a commitment to the dual bedrock proposition about federal courtjurisdiction articulated by Chief Justice Marshall in 1821 in Cohens v.Virginia,29 a proposition Justice Ginsburg expressly invoked in the openinglines of her opinion in Marshall v. Marshall, the Anna Nicole Smith case,where she wrote:

In Cohens v. Virginia, Chief Justice Marshall famously cautioned: "It ismost true that this Court will not take jurisdiction if it should not: but it isequally true, that it must take jurisdiction if it should .... We have no moreright to decline the exercise of jurisdiction which is given, than to usurp thatwhich is not given. 3°

There, Justice Ginsburg had concluded that the "probate exception" tofederal jurisdiction was a narrow one that did not bar Smith's suit against the

23 Ruth Bader Ginsburg, Speaking in a Judicial Voice, 67 N.Y.U. L. REv. 1185,

1186 (1992).24 See, e.g., JOHN HART ELY, DEMOCRACY AND DISTRUST (1980).25 See, e.g., ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH (1962); CASS

R. SUNSTEIN, ONE CASE AT A TIME (1999).26 See, e.g., Younger v. Harris, 401 U.S. 37 (1971).

27 See 526 U.S. 574, 577 (1999).

28 Sinochem Int'l Co. v. Malay. Int'l Shipping Corp., 549 U.S. 422, 433 (2007)

(citing Ruhrgas AG, 526 U.S. at 584-85, in turn quoting In re Papandreou, 139 F.3d 247,255 (D.C. Cir. 1998)).

29 19 U.S. 264 (1821).

30 Marshall v. Marshall, 547 U.S. 293, 298-99 (2006) (citing Cohens, 19 U.S. at 404

(1821)).

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son of her late husband, a suit that was otherwise within the jurisdiction ofthe federal courts under the terms of the bankruptcy statute.3

Recognizing that there is a difference between an absence of jurisdictionand a failure to meet some nonjurisdictional deadline, which leaves the Courtwith the power to exercise its jurisdiction, is not just the dry, technical stuffof federal procedure. For the importance of cabining claims of ajurisdictional bar to those cases in which the bar truly is jurisdictional is quiteprofound. To see this, one need look no further than the 2007 case of Bowlesv. Russell,32 where the Court divided closely about the application of the rulearticulated by Justice Ginsburg in Kontrick.3 3

In that case, a district judge extended the time within which a prisonercould appeal from the denial of his petition for habeas relief. The judge set adue date for the notice of appeal that was seventeen days after his order.34

The Federal Rules and the statute, however, allowed him to extend the timeonly for fourteen days.35 As the Court majority noted, the judge's action was"inexplicabl[e] .,,36

The Supreme Court divided 5-4 about whether that fourteen-day limitwas jurisdictional. Justice Thomas wrote the opinion of the Court that heldthe prisoner's appeal barred.37 Even though the district judge had told theprisoner that he could file his notice of appeal on the date it was filed, theCourt held, the prisoner had missed the deadline.38

Justice Ginsburg joined the dissent, which was written by Justice Souter.The dissent concluded that it was "intolerable for the judicial system to treatpeople this way," and, it concluded that, because the rule providing for only afourteen-day extension was not jurisdictional, such treatment was notrequired by law.3 9 The dissenting opinion put the gravamen of the matteraptly, saying:

The stakes are high in treating time limits as jurisdictional. While amandatory but nonjurisdictional limit is enforceable at the insistence of aparty claiming its benefit or by a judge concerned with moving the docket,it may be waived or mitigated in exercising reasonable equitable discretion.But if a limit is taken to be jurisdictional, waiver becomes impossible,

3 1 Id. at 299-300.

32 551 U.S. 205 (2007).33 Id.34 Id. at 207.35 See 28 U.S.C. § 2107(c); FED. R. APP. P. 4(a)(6).3 6 Bowles, 551 U.S. at 207.3 7 Id. at 206-07.3 8 Id. at 214-15.39 Id. at 215 (Souter, J., dissenting).

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meritorious excuse irrelevant (unless the statute so provides), and suasponte consideration in the courts of appeals mandatory ....

40

So a first lesson about judging in Justice Ginsburg's jurisprudence is totake care not to exceed one's jurisdiction, but-and here there is a hint of thecourage I spoke of at the outset-to exercise that jurisdiction where it isproperly invoked.

A second lesson is to be attentive in exercising judicial authority to theproper role of the courts. Our courts exist to resolve disputes, and they do sowithin the context of an adversarial system. In criminal cases, in particular,the adversary nature of our system reflects the departure of the Englishcommon law from inquisitorial continental European systems that rely uponexamination by judicial officers. We are justly proud of our adversary systemas-in Wigmore's words about cross-examination, its inherent constituent-an "engine... for the discovery of truth. '

Justice Ginsburg's jurisprudence is animated by recognition that thejudge's role is that of adjudicator in a system that is fundamentally anadversarial one. Indeed, that is an animating principle in the Kontrickdecision that I have already been using as an example. In that case, thecreditor brought a claim outside the time limit provided for by the Rules. But,Justice Ginsburg wrote, despite that, the decision against the debtor could notbe reversed for that reason on appeal-because he had failed to raise thepoint in the adversarial proceeding below.42

The lesson for judges is that, once satisfied that there is jurisdiction,courts in our system should in general decide the cases as they are presentedto them. They are to adjudicate. Thus, in a case last June Justice Ginsburgwrote:

In our adversary system, in both civil and criminal cases, in the firstinstance and on appeal, we follow the principle of party presentation. Thatis, we rely on the parties to frame the issues for decision and assign tocourts the role of neutral arbiter of matters the parties present .... Ascogently explained [by the late Judge Richard Arnold of the United StatesCourt of Appeals for the Eighth Circuit]: "[Courts] do not, or should not,sally forth each day looking for wrongs to right. We wait for cases to come

40 Id. at 216-17.41 5 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 1367 (J.

Chadbourn rev. 1974).42 Kontrick, 540 U.S. at 458-60.

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to us, and when they do we normally decide only questions presented by theparties.'

43

And here she quoted Ben Kaplan, the great former Justice of theMassachusetts Supreme Judicial Court who remains to this day, four daysafter his ninety-eighth birthday, my colleague as a Recall Justice on theMassachusetts Appeals Court, who wrote in 1960 that our system-in auniquely American way--"exploits the free-wheeling energies of counseland places them in adversary confrontation before a detached judge.""

This is not to say that this is an inflexible rule for Justice Ginsburg. Shehas noted that courts will depart from this rule to protect the rights of pro selitigants,'45 and has suggested that the same might be permissible in certaincircumstances in the case of criminal defendants who are represented.46 Butshe has been clear in articulating and abiding by the general rule.

And it is a rule that judges valuably heed. For even when a court haspower to decide a case on a ground not raised by a party, the adoption of aposition that has not been tested before us in the crucible of the adversaryprocess may have unintended consequences, much like the expression ofrules that are broader than necessary for decision. And, while, as manyappellate judges have noted, the briefs before us may not always be ofuniform quality,47 the courts' assumption of the responsibility for craftingarguments on behalf of the parties can only undermine the importantincentives for counsel zealously and thoroughly to present their clients'cases. The rule of restraint articulated by Justice Ginsburg, like many of therules that cabin our work as judges, does not exist simply for its own sake.As I have found in my own work, it reflects a profound insight into theprudent use ofjudicial power.

Finally, I want to talk about Justice Ginsburg and the question ofcollegiality on a multimember court. Courts are by nature human institutions.If that is something one can recognize as a layperson, law student, or lawyer,if it is something one can see at close hand as a law clerk, it is something themyriad dimensions of which one can perhaps not really grasp until one has

43 Greenlaw v. United States, 128 S. Ct. 2559, 2564 (2008) (quoting United States v.Samuels, 808 F.2d 1298, 1301 (8th Cir. 1987)).

44 Benjamin Kaplan, Civil Procedure-Reflections on the Comparison of Systems, 9BuFF. L. REv. 409, 431 (1960).

45 Greenlaw, 128 S. Ct. at 2560.46 See id.47 E.g., Robert A. Katzmann, The Legal Profession and the Unmet Needs of the

Immigrant Poor, 21 GEO. J. LEGAL ETHics 3, 10 (2008); Interview with Richard A.Posner, 7th Cir. Judge, How Appealing's 20 Questions Site (Dec. 1, 2003),http://howappealing.law.com/20q/2003_12-01-20q-appellateblog_archive.html.

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had the experience of sitting as a judge on such a multimember court.Certainly it is something I have come to appreciate more fully since my ownappointment to the bench.

One cannot discuss Justice Ginsburg's role on the Supreme Courtwithout discussing collegiality. It is a topic on which she wrote while servingon the D.C. Circuit,48 and recognition of its importance animates not just herjurisprudence, but her life.

We are not so many years from Justice Holmes' reputed remark that theJustices of the High Court were "nine scorpions in a bottle.' '49 In the yearssince that time, Justice Black after the Court's weekly conference oncereported of his colleague Justice Felix Frankfurter, "I thought Felix wasgoing to hit me today, he got so mad." 50 Even closer to home, while JusticeGinsburg sat on the D.C. Circuit, one of her colleagues said to another in theprivate conference held after oral argument, "if you were 10 years younger,I'd be tempted to punch you in the nose."51 In 1990, Judge Posner, who sitson the Seventh Circuit, wrote:

The tensions within an appellate court in which all the judges sit en banc(rather than in rotating panels, the normal mode in the federal courts ofappeals) are great; they are greatest in the Supreme Court. It is like arrangedmarriage in a system with no divorce. The tensions fester, generatingdebilitating personal rivalries, resentments, apathy, burnout, idiosyncrasy,and a shrill and nasty rhetoric of invective.

52

Yet by all accounts, the era during which Justice Ginsburg has sat on theSupreme Court has been perhaps the most collegial in its history. JusticeBreyer has said that he has never heard a voice raised in anger in the Justices'private conference room.53 There can be no doubt of the significant roleJustice Ginsburg has played in this collegiality. The public evidence isremarkable. Shortly after joining the Court, Justice Ginsburg appeared incostume with one of the Justices with whom she most often disagrees, herfriend Justice Antonin Scalia, in the Washington Opera Production of

48 See Ginsburg, supra note 23.49 Richard A. Posner, A Tribute to Justice William J. Brennan, Jr., 104 HARV. L.

REv. 13, 14 (1990) (attributing this phrase to Justice Holmes).50 HUGO BLACK, JR., My FATHER: A REMEMBRANCE 234 (1975).51 Neil A. Lewis, The 1992 Campaign: Selection of Conservative Judges Insures a

President's Legacy, N.Y. TIMEs, July 1, 1992, at A13.52 Posner, supra note 49, at 14.53 John F. Kennedy Library Foundation, A Conversation with Justice Stephen

Breyer (Sept. 21, 2003), http://www.jfldibrary.org/NR/rdonlyres/0B208E56-8F66-4C2C-Al B4-B7B997CAB5DO/3005 1/BREYER.pdf.

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Ariadne aufNaxos.54 She and Justices Anthony Kennedy and Steven Breyerappeared-playing judges-in a Washington production of Die Fledermausin 2003." Justices Ginsburg and Scalia and their spouses spend New Year'sEve together every year.56 And she has traveled abroad at various times withcolleagues, including Justices Scalia and O'Connor.

Collegiality is important for a number of reasons, but perhaps the mostimportant is the role it plays in assuring clarity in the law. For wheneverpossible, a court should speak with clarity, in a single voice. Under oursystem, we abandoned seriatim opinions near the very beginning, in the timeof Chief Justice Marshall. Yet we have, in Justice Ginsburg's words,"place[d] no formal limit on the prerogative of each judge to speak outseparately., 57 Given this framework, Justice Ginsburg has explained that"overindulgence in separate opinion writing may undermine both the.reputation of the judiciary for judgment and the respect accorded courtdispositions. Rule of law virtues of consistency, predictability, clarity, andstability may be slighted when a court routinely fails to act as a collegialbody. "58

One of the most interesting things that I have come to realize sincebecoming a judge is that, regardless of the similarity of their views, no twopeople will write exactly the same opinion. Indeed, as Justice Ginsburgherself noted in an article in 1992, Chief Justice Stone once wrote to KarlLlewellyn: "You know, if I should write in every case where I do not agreewith some of the views expressed in the opinions, you and all my otherfriends would stop reading my separate opinions. 59

Yet for the sake of the clarity and usefulness of the law, judges onmultimember courts must routinely join opinions that are not written as theywould have written them. It is an obligation inherent in our system. And ifthis presents a challenge on a court that sits in panels, like mine or the D.C.Circuit on which Justice Ginsburg sat, how much more difficult must it be ona nine-member court like the Supreme Court that hears every case en banc?

54 Stephen Wigler, Staging, Singing Make Washington Opera's 'Ariadne' AlmostMagical, BALT. SUN, Jan. 10, 1994, at 2D.

55 Ann Geracimos & Kevin Chaffee, Opera Season Opens in Supreme Fashion,WASH. TIMES, Sept. 9, 2003, at B8.

56 Joan Biskupic, Justices Strike a Balance, USA TODAY, Dec. 26, 2007, at I D.

57 Ginsburg, supra note 23, at 1190.58 Id. at 1191.59 See id. (quoting WALTER F. MURPHY, ELEMENTS OF JUDICIAL STRATEGY 62

(1964), in turn quoting Letter from Harlan F. Stone, Associate Justice, Supreme Court ofthe U.S., to Karl Llewellyn, Professor, Columbia Law Sch. (Feb. 4, 1935)) (internalbrackets omitted).

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In this regard, Justice Ginsburg clearly recognizes the importance ofhuman relations on a court in furthering rule of law values. As their votingrecords make clear, no Justice's mind has been changed merely by thefriendships among them. But federal judges are appointed for life. They mayserve with one another for years, even decades. Examining an opinioncirculated by a person you have come to like and trust is likely to be adifferent experience entirely from examining an opinion from a colleaguewith whom you are not friendly, one with whom you have not built a similarbond of trust. Likewise the process of reviewing suggestions from anotherjudge that might permit him or her to join your opinion. Anecdotes fromSupreme Court history confirm this human truth, and there can be little doubtthat, while it may not be quantifiable with precision, Justice Ginsburg'sconduct toward her colleagues, and the atmosphere it has helped engendermore broadly-and the pun is indeed intentional-has played a role inallowing the Court to speak with one voice, where the views of its Justicesmake that possible.

Collegiality, too, is part of a virtuous circle, and Justice Ginsburg hascautioned against separate writing that generates more heat than light.Needless invective and personal attack, she noted, disserve the causes ofpublic respect for the courts and the administration of justice.60 Indeed, suchattacks can make collegial work more difficult in the human institutions thatare our courts. Thus, for example, she concurred only in the judgment inWashington v. Glucksberg,61 disagreeing with Justice O'Connor, who hadjoined the Court's opinion and written her own opinion concurring in it.

62

Nonetheless, Justice Ginsburg wrote only a short opinion stating that sheconcurred in the judgment-that she thought the case came out correctlyeven though she disagreed with the majority opinion-"substantially for thereasons stated by Justice O'Connor in her concurring opinion. 63 Insomewhat the same vein, in her separate dissent in the 1995 affirmativeaction case, Adarand Constructors v. Pena,64 Justice Ginsburg wrote, in herwords, "to underscore not the differences the several opinions in this casedisplay, but the considerable field of agreement-the commonunderstandings and concerns-revealed in opinions that together speak for amajority of the Court.'

6 5

60 See Ginsburg, supra note 23, at 1194-98.

61 521 U.S. 702 (1997).

62 See id. at 736-38 (O'Connor, J., concurring).6 3 Id. at 789 (Ginsburg, J., concurring in the judgment).

64 515 U.S. 200, 271 (1995) (Ginsburg, J., dissenting).65 Id.

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But this brings me back (again) to where I began, to Justice Ginsburg'scourage and candor. For while she is sensitive to the need for collegiality, thelesson she teaches for judges of all stripes is not that judging is a passionlessor bloodless activity. Those who know her can attest to her passion, as do thepublished reports of her reading aloud her dissents two Terms ago inLedbetter and Carhart.66 Justice Ginsburg recognizes what is at stake in thejob of judging, particularly at the Court on which she sits.

Her concern about collegiality thus does not overshadow her sense ofobligation to dissent or to concur separately when she concludes that doingso is warranted by her views. Rather, the very collegiality that she has soughtto encourage provides space for the candid and forthright manner in whichshe writes when she disagrees with her colleagues. And this, too, is animportant lesson for judges who serve on multimember courts.

In a New York University Law Review article in 1992, she emphasizedthat separate writing was not, in her words, a "consummation[] devoutly tobe avoided,"6 7 and Justice Ginsburg has written powerful and significantdissents in a wide range of cases. These dissents are not characterized bypersonal attack. They avoid needless invective, but Justice Ginsburg's prosecan be unflinching and direct. She does not shy away from clear expressionsof the significance of the case before her or of the depth of her disagreementwith the views of the Court majority.

This directness was perhaps on clearest display in her dissent in what isperhaps the most important case on which she has ruled, Bush v. Gore, inwhich the Court majority of course stopped the counting of presidentialelection ballots in Florida ordered by that State's Supreme Court.68 One ofher law clerks at the time has been quoted as saying that, despite the stakesand the division on the Court, "I was struck by how much of an institutionalcitizen [Justice Ginsburg] was, how attuned to the wishes of her colleaguesand to not giving offense." 69 Yet there she wrote: "the Court's conclusion thata constitutionally adequate recount is impractical is a prophecy the Court'sown judgment will not allow to be tested. Such an untested prophecy shouldnot decide the Presidency of the United States. I dissent.

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That degree of clarity is a hallmark of her most significant writing on theCourt, in majority opinions and dissents, in cases of substantial and lesssubstantial national importance. The strength it demonstrates is doubtless areflection in large measure of Justice Ginsburg's background and experience.

66 Gonzales v. Carhart, 550 U.S. 124 (2007); see Linda Greenhouse, Oral Dissents

Give Ginsburg a New Voice, N.Y. TIMES, May 31, 2007, at Al.67 Ginsburg, supra note 23, at 1194.

68 Bush v. Gore, 531 U.S. 98, 110 (2000) (per curiam).

69 Greenhouse, supra note 66.70 Bush, 531 U.S. at 144 (Ginsburg, J., dissenting) (paragraph break omitted).

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And regardless of whether one agrees or disagrees with the merits of herdecisions, Justice Ginsburg's understanding of her ultimate obligation-torule on the cases before her to the best of her ability, and to state herconclusions, even when controversial, with directness and without fear-isperhaps the most important lesson for other judges of her work on ourSupreme Court.